While copyright attaches when an author creates an original work in a fixed tangible medium, there may still be a number of questions to answer in identifying who the owner of the copyright actually is.
In determining ownership of copyrighted work:
- Law sets the defaults
- Policies clarify and apply the law
- Contracts transfer rights
Who owns works created at the University? Do you? Does the University? Does someone else? What if many people contribute to the work? Does everyone own it?
There are two ways to determine ownership in a project:
- Set up a project with written agreements through UW CoMotion so that ownership is aligned with your objectives, or
- Do nothing and let the law tell you where it is. This means that if you don’t do anything to structure ownership of a work, as soon as the work is created, ownership will be established according to law and the owner may not be who you think it is or who it should be. This may produce undesirable outcomes with multiple authors or joint authorship which makes publishing or licensing the work impossible.
Applying the law
Applying the law can be complicated. The law considers who authored the work and whether the work was prepared for an employer. If more than one author is involved, it becomes necessary to consider how those involved intended for their work to be merged.
It is also necessary to consider any contracts or other obligations related to the creation of the work, and whether the work incorporates existing copyright material.
Any and all of these variables can have an impact on ownership.
Under copyright law, the author of a work is the creator of the original expression that has been fixed in a tangible medium. The author of a work is the person(s) who owns the copyright and enjoys all the rights associated with copyright. Authors may be individuals, joint authors, or an employer or commissioning party if there has been a work made for hire.
Works Made for Hire
Under most circumstances, the person (or persons) who created the work is considered the “author” for legal and copyright purposes. However, the exception to this understanding is the concept of “Works Made for Hire.”
Works Made for Hire is a copyrightable work that is created by an employee as part of that employee’s regular duty or when a work is created as a result of an express written agreement between the creator and the party commissioning the work.
As an example, consider entertainment awards shows when the “Best Picture” is announced. It isn’t the writer, cinematographer, or director that accepts that award, although all contribute what would generally be considered original works of authorship – it is the film’s producer on stage accepting the award. The reason for this is because before a single frame of film was rolled, the production team executed work for hire agreements with every member of the film crew. This effectively made the film’s producer the “author” of the film and therefore owner of the copyright. The rationality for this arrangement is clear – a film, which requires the creative input of so many people, needs to have only one “author” if it is to be sold and distributed and not paralyzed by a myriad of copyright claims from multiple people.
University of Washington
While a “work for hire” clause is generally included in employment agreements, including at the University of Washington, this does not necessarily mean that all works created by a creator paid by the University automatically belong to the University as “author.” Determining authorship at the University is a fact-specific analysis of the circumstances under which the work was created. In fact, the UW Copyright Policy found in Executive Order 36 expressly encourages the creation of scholarly works of individual initiative and “acknowledges the right of faculty, staff, and students to prepare and publish, through individual initiative, articles, pamphlets, and books that are copyrighted by the authors or their publishers and that may generate royalty income for the authors.”
The UW Copyright Policy further states that “University faculty, staff, and students retain all rights in copyrightable materials they create, except when special circumstances or contractual arrangements prevail.” Special circumstances or contractual arrangements that may give rise to University ownership or financial interests in a work include those works subject to terms of sponsored grants or contracts, works specially commissioned by the University, and works created using University service centers. For UW faculty, staff, and students, it is imperative to understand what, if any, contributions to a project will be owned by the University as Works Made for Hire. Contact CoMotion if you have any questions about your project.
Two or more individuals may contribute to a work with the intention that their separate contributions be “merged into inseparable or interdependent parts of a unitary whole.” The final result is considered a “joint work” and under copyright law both creators would be considered a joint author owning the work’s copyright jointly and equally.
Examples of joint authorship might include a writer and illustrator collaborating on a children’s book. Or a lyricist and composer working together on a musical composition. Or multiple programmers contributing portions of code with the intention of creating a single software program. Note that each author’s contribution need not be exactly equal to create a joint work; the contribution only needs to be copyrightable and the authors must agree that the work is a joint work.
Co-ownership of copyright means that each joint author may, without the consent of the other:
- Grant third-parties permission to use the work on a non-exclusive basis
- Transfer their entire ownership interest to another person
- Update the work for their own purpose
Unless otherwise agreed by a separate writing, each joint author is required to account to the other(s) for any profits received from licensing or exploiting the joint work. If two or more people are collaborating together but with the intention that only one person be considered author of the created work, the parties should all execute written agreements between themselves, including Works Made for Hire agreements, which articulate that preference. Alternately, the authors may agree that a joint work is not desired and each author retains full copyright of their own contributions as separate works.
Obligations of Copyright Ownership
Obligations to others regarding copyright ownership may arise through:
- Sponsored research agreements
Further complicating the ownership analysis is the issue of works sponsored or commissioned by third parties, such as works developed as part of research, consulting, or testing agreements.
Many sponsors seek rights to use or own copyrightable results of research and other contractual relationships and it is necessary to consider the obligations such requirements may place on the project. If ownership is transferred to a sponsor or another party, the creator of the work may not be able to publish the work or use the work as the basis for other works.
In many cases, this factor completely changes the ownership equation. If rights have been transferred to a sponsor, it is not an issue of whether the University or the creator controls how the work is used, the sponsor would have that right.
It is appropriate to carefully consider if this situation is desirable.
In general, the University does not recommend transferring all rights to a sponsor as part of a research or other agreement because this could have adverse impact on a faculty member’s ongoing research program.
Use of Other Works
Use of works of others may require:
- Ownership clarification
New works that result from the bringing together of text, graphics, photographs, sound recordings, or movie clips can be a valuable educational resource for students, both in traditional classroom settings as well as through distance education courses.
These new sources and bodies of information are often easy to access, but if they are used, what impact will this have on the rights in the new work?
Two types of works formed in this manner are compilations and derivative works.
- A compilation is a work in which several separate elements are gathered together and arranged in an original way.
- A derivative work is a work that modifies, recasts or transforms a previous work. The new work may be eligible for copyright protection, in addition to the copyright in any components or prior works.
Whether a developer can use materials copyrighted by others in a compilation or derivative is an important question to resolve before work on a project begins. Generally, when someone alters a work, permission of the copyright owner is required, absent a fair use defense.
Just because the technology exists to allow works to be gathered together to form what could be a valuable resource, does not mean that the law will permit such an effort. Whether or not particular works may be used and what rights the creator of the resulting compilation would have depends on the particular works involved, the manner in which the particular works were used, and the intended use of the compilation.
Generally, if the developer of a compilation intends to publish the work or distribute copies of the work to others, such an effort requires that the developer of a compilation obtain the permission of the owner of each copyrighted contribution brought together to form the compilation. Without such agreements, the compilation may infringe the rights of others.